Little Falls Tp. v. Husni

• Decision Date: 30 January 1976
• Citation: 352 A.2d 595,139 N.J.Super. 74
• Parties: TOWNSHIP OF LITTLE FALLS, Plaintiff-Respondent, v. Henry HUSNI, Proprietor, t/a Wash 'N' Dry Laundromat, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 74

139 N.J.Super. 74

352 A.2d 595

TOWNSHIP OF LITTLE FALLS, Plaintiff-Respondent, v. Henry HUSNI, Proprietor, t/a Wash 'N' Dry Laundromat Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 13, 1976.

Decided Jan. 30, 1976.

Hengeveld & Hanse, Paterson, for defendant-appellant (Ralph E. Faasse, Paterson, on the brief).

James V. Segreto, Haledon, for plaintiff-respondent.

Before Judges MATTHEWS, LORA and MORGAN.

PER CURIAM.

Defendant was convicted in municipal court and subsequently in County Court after a trial De novo on the record, of violating a municipal ordinance by operating a self-service laundry between the hours of midnight and 7 a.m. without an attendant on duty. It is undisputed that defendant violated the ordinance. The issue is whether the ordinance is reasonably related to the public health and safety or whether it is arbitrary and oppressive and not within the domain of the police power.

Ordinance 7--9 of the Township of Little Falls, entitled 'An Ordinance to License and Regulate the Operation of Self-Service Laundries, and to Prescribe Penalties for Violations,' is comprised of nine sections, some of which establish a licensing scheme for self-service laundries (hereafter laundromats). Section five deals only with regulation of laundromats and is divided into eleven subsections. The subsection here in issue provides:

h. No self-service laundry shall be open for business between the hours of 12:00 p.m. and 7:00 a.m. but machines started before 12:00 p.m. need not be stopped until the operation is completed, provided that a self-service laundry may remain open between the hours of 12:00 p.m. and 7:00 a.m. if an attendant is on continuous duty during those hours.

Defendant first contends that N.J.S.A. 40:52--1 (the licensing statute) does not authorize a municipality to enact on ordinance licensing and regulating the operation of self-service laundries and that since the licensing provisions of the ordinance are inseparable from the regulatory provisions thereof, the ordinance in its entirety is invalid.

Without in any way implying or passing upon the validity of the licensing provisions we reject defendant's contention that they are so intimately related to the regulatory provisions that both must stand or fall together. The test of total invalidity was set forth in Gross v. Allan, 37 N.J.Super. 262, 117 A.2d 275 (App.Div.1955):

The question of severability of the invalid provision is one both of legislative intent, Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 361, 94 A.2d 482, 36 A.L.R.2d 639 (1953), and of whether the remaining provisions are functionally self-sufficient as containing the essentials of a complete enactment, Schait v. Senior, 97 N.J.L. 390, 393, 117 A. 517 (Sup.Ct.1922). The two criteria must coexist. (at 269, 117 A.2d at 278.)

The regulations make no reference to 'license' or 'licensee' but constitute a separate, complete the intelligible unit. Contrast Tagmire v. Atlantic City, 35 N.J.Super. 11, 113 A.2d 59 (App.Div.1955); Tillberg v. Kearny Tp., 103 N.J.Super 324, 247 A.2d 161 (Law Div.1968), and Mister Softee v. Hoboken Mayor and Council, 77 N.J.Super 354, 186 A.2d 513 (Law Div.1962). We can find no legislative intent that the licensing and regulatory provisions be considered as an inseparable unit. Rather, the structure of the ordinance, when coupled with the general severance provision in the Revised General Ordinances of Little Falls (§ 1.4) shows a legislative intent to preserve any portion of the ordinance that is not invalid and permits exercise of the preference in favor of severability. See Affiliated Distillers Brands Corp. v. Sills, 56 N.J. 251, 265, 265 A.2d 809 (1970); Angermeier v. Sea Girt, 27 N.J. 298, 311, 142 A.2d 624 (1958). Defendant was not charged with a violation of the licensing provisions and, in fact, he has apparently complied with them. Even assuming the invalidity of those provisions it would, in view of our determination on severability, be improper to invalidate the regulatory provisions on that basis. Economy Ent., Inc. v. Manalapan Tp. Comm., 104 N.J.Super. 373, 377--378, 250 A.2d 139 (App.Div.1969).

We find it unnecessary to pass upon defendant's contention that regulation of laundromats is not within the ambit of N.J.S.A. 40:52--1(g) ¹ and we will assume for present purposes only that the rule of Ejusdem generis bars application of the statute to laundromats. See Salomon v. Jersey City, 12 N.J. 379, 388--389, 97 A.2d 405 (1953), and compare Absecon v. Vettese, 13 N.J. 581, 587--588, 100 A.2d 750 (1953); General Roofing Co. v. Belmar, 77 N.J.Super. 469, 471--476, 187 A.2d 16 (App.Div.1962), and Coast Cigarette Sales v. Long Branch Mayor & Council, 121 N.J.Super. 439, 449, 297 A.2d 599 (Law Div.1972).

However, we are satisfied that even if authority to regulate laundromats cannot be found within N.J.S.A. 40:52--1(g) such authority exists as an attribute of the general police power pursuant to N.J.S.A. 40:48--2. Although our research reveals no reported New Jersey decision which specifically holds that laundromats may be regulated under N.J.S.A. 40:48--2, the broad interpretation our courts have given to the general police power and the wide variety of situations in which it has been held applicable (see, E.g., Justice Pashman's partial listing of these situations in his dissent in Sente v. Clifton Mayor and Council, 66 N.J. 204, 216--217, 330 A.2d 321 (1974), make it undisputable that laundromats are subject to the police power. 7 McQuillin Municipal Corporations (3 Ed.1968), § 24.337 at 245, and generally, Summer v. Teaneck, 53 N.J. 548, 552, 251 A.2d 761 (1969). Cf. Marie's Launderette v. Newark, 35 N.J.Super. 94, 113 A.2d 190 (App.Div.1955). We note that in upholding the ordinance here involved the County Court relied only on N.J.S.A. 40:48--2.

Thus, the issue resolves itself into whether the regulation in question is a reasonable exercise of the general police power of the municipality. We are not aware of any decision in this State which deals with the requirement of an attendant at a laundromat. Those decisions of other jurisdictions which have spoken to this particular question are split as to the validity of such a regulation and, if nothing else, serve as a reminder that cases of this nature turn on their particular facts. Compare Gibbons v. City of Chicago, 34 Ill.2d 102, 214 N.E.2d 740 (Sup.Ct.1966), Cert. den. 385 U.S. 829, 87 S.Ct. 63, 17 L.Ed.2d 65 (1966); Anton's of Reading, Inc. v. Town of Reading, 346 Mass. 575, 195 N.E.2d 80 (Sup.Jud.Ct.1964); Schacht v. City of New York, 30 Misc.2d 77, 219 N.Y.S.2d 53 (Sup.Ct.1961), mod. 14 A.D.2d 526, 217 N.Y.S.2d 278 (App.Div.1961), 40 Misc.2d 303, 243 N.Y.S.2d 272 (Sup.Ct.1963), aff'd 281 N.Y.S.2d 973 (App.Div.1967), upholding ordinances which, among other provisions, required the presence of an attendant at a laundromat, with Heard v. Bolton, 107 Ga.App. 863, 131 S.E.2d 835 (App.Ct.1963); Van Sciver v. Zoning Bd. of Adjustment of Philadelphia, 396 Pa. 646, 152 A.2d 717 (Sup.Ct.1959); Friendlyville Enterprises, Inc. v. Village of Amityville, 217 N.Y.S.2d 695 (Sup.Ct.1961), all of which disapproved the requirement of an attendant at a laundromat.

In New Jersey, municipal ordinances passed pursuant to the police power are vested with a strong presumption of validity. N.J.Const. (1947), Art. IV, § VII, par. 11; Moyant v. Paramus, 30 N.J. 528, 534, 154 A.2d 9 (1959); Elizabeth v. Sullivan, 100 N.J.Super. 51, 55, 241 A.2d 41 (Cty.Ct. 1968); Berkeley Tp. Bd. of Health v. Johnson, 73 N.J.Super. 384, 391--392 180 A.2d 156 (App.Div.1962). It is the burden of those who challenge an ordinance to show by clear evidence Aliunde or by a showing on its face or in the light of facts of which judicial notice can be taken, that there is a transgression of constitutional limitation or the bounds of reason. Moyant, supra, 30 N.J. at 535, 154 A.2d 9; Elizabeth, supra, 100 N.J.Super at 55--56, 241 A.2d 4; Clifton v. Weber, 84 N.J.Super. 333, 339, 202 A.2d 186 (App.Div.1964), aff'd 44 N.J. 266, 208 A.2d 401 (1965).

Although the factual background which motivated plaintiff municipality to pass this ordinance was not developed at trial, a reading of all the regulations shows that they are intended to preserve the safety and welfare of those who use laundromats. Nothing in the record bespeaks of arbitrary or unreasonable action on the part of the municipality. Where, as here, the subject is comprehended in the police power, debatable questions as to reasonableness are not for the courts but for the legislative body which is...